By Katherine Iliopoulos
In the aftermath of Israel’s January offensive in the Gaza Strip, there have been widespread calls for investigations into possible violations of international humanitarian law by both parties. The Israeli Defence Force has conducted internal investigations into the conduct of its troops. However, serious doubts exist as to the methods used and the impartiality of the findings, adding impetus to the growing calls for Israel to co-operate with an independent inquiry to be led by former ICTY prosecutor Richard Goldstone.
Having concluded a number of internal investigations into its conduct during Operation Cast Lead in Gaza, the IDF stated in the IDF Announcement of April 22, 2009 that it had operated in accordance with international law. The investigation found that no Palestinian civilians were harmed intentionally.
Five investigative teams comprised of officers not involved in the offensive dealt with the following issues: claims that UN and international facilities were fired upon and damaged; incidents involving shooting at medical facilities, buildings, vehicles and crews; claims regarding incidents in which many uninvolved civilians were harmed; the use of white phosphorous weapons; and damage to infrastructure and destruction of buildings by ground forces.
The IDF’s investigations revealed “a very small number of incidents” in which intelligence or operational ‘errors’ took place during the fighting. According to the IDF Announcement, “these unfortunate incidents were unavoidable and occur in all combat situations, in particular of the type which Hamas forced on the IDF, by choosing to fight from within the civilian population.”
The laws of war require parties to avoid as far as possible locating military targets in civilian areas, and the use of human shields by a party to a conflict is a war crime. Nevertheless Israel had the obligation to refrain from launching any attack that might be expected to cause excessive civilian loss in comparison to the concrete and direct military advantage anticipated. That is, a violation by Hamas would not justify Israeli forces ignoring the civilian consequences of a planned attack. Such a disregard of the potential for disproportionate harm to civilians would constitute be a serious violation of international humanitarian law, and—in the opinion of most people—a war crime.
The IDF also stated that it made a significant effort to warn civilians in the Gaza Strip to keep away from harm: “The IDF dropped more than 2,250,000 leaflets during the fighting, used Palestinian radio, made personal telephone warnings to more than 165,000 Gaza residents and carried out a special warning shot procedure (”A knock on the roof”), in order to ensure that Palestinian civilians could avoid harm.” However the Announcement gives no indication of the time allowed for civilians to evacuate and there is evidence from other investigations and reports to suggest that there were few ‘safe areas.’ For example, 30 Palestinians in Zeitoun were killed in early January when the IDF shelled a house where its troops had told about 110 civilians to take shelter.
The IDF admitted that the Zeitoun incident was the most severe operational failure. IDF forces had been preparing to attack an arms warehouse adjacent to the house, but faulty intelligence and incorrect coordinates led the Air Force to shell the house instead. A senior IDF source told Israeli news website Ynet that although the results of the investigation would be referred to the Judge Advocate General for further review, “it was unlikely that the incident would be ruled as an act of neglect or premeditation, and therefore those involved were unlikely to face criminal charges.”
The IDF stated that it “made extensive use of accurate munitions, wherever and whenever possible, to minimize harm to civilians” and declared that it used white phosphorous in Gaza in compliance with international humanitarian law.
Human Rights Watch’s findings contradict this claim. In its report released in March, HRW said that some of the cases of white-phosphorus use demonstrate evidence of war crimes. Its researchers in Gaza found spent white phosphorous artillery shells, canister liners, and dozens of burnt felt wedges containing white phosphorus on city streets and apartment roofs, in residential courtyards, and at a UN school.
The report, ‘Rain of Fire: Israel’s Unlawful Use of White Phosphorus in Gaza,’ detailed six cases of the improper use of white phosphorus by the IDF and documents a pattern or policy of white phosphorus use that Human Rights Watch says “must have required the approval of senior military officers.”
Deputy army chief Major General Dan Harel admitted that the IDF used mortar shells containing phosphorus, but amid international controversy the IDF suspended their use on January 7. Harel insisted that the mortar shells had only been fired in open areas as markers and range-finders. However HRW claimed that artillery shells containing white phosphorus struck a hospital and the headquarters of the UN Relief and Works Agency in Gaza City.
Smokescreen munitions continued to be used after January 7, which according to Harel were used in open areas only and employed in accordance with international law.
Fred Abrahams, senior emergencies researcher at Human Rights Watch and co-author of the report, drew a different conclusion, saying that “the Israeli military didn’t just use white phosphorus in open areas as a screen for its troops. It fired white phosphorus repeatedly over densely populated areas, even when its troops weren’t in the area and safer smoke shells were available. As a result, civilians needlessly suffered and died.”
Regarding the use of white phosphorus on the UNRWA headquarters in the centre of Gaza City on 15 January 2009, the IDF claimed that “it appears that fragments of the smoke projectiles hit a warehouse located in the [UNRWA] headquarters.” The observations of Amnesty International researchers counter this claim. They saw several white phosphorus artillery shells which had landed and exploded inside the compound, together with at least one high explosive artillery shell.
Human Rights Watch said on Thursday that the Israeli army’s investigation of troop conduct during its war on Gaza appeared to be an attempt to cover up “violations of the laws of war.”
A coalition of Israeli human rights groups, including B’Tselem, Physicians for Human Rights, Yesh Din, The Public Committee Against Torture and Rabbis for Human Rights, also criticised the inquiry, saying that “data collected by Israeli human rights organisations shows that many civilians were killed in Gaza not due to ‘mishaps’ but as a direct result of the military’s chosen policy implemented throughout the fighting.”
“Only an impartial inquiry will provide a measure of redress for the civilians who were killed unlawfully,” said Joe Stork, a deputy director of Human Rights Watch, echoing Israeli rights groups who added that “If the military claims that there were no major deficiencies in its conduct in Gaza, it is not clear why Israel refuses to co-operate with the UN investigation team, which requests an investigation of alleged violations of international law by both Israel and Hamas.”
The UN investigation team will be led by South African Richard Goldstone, appointed by the UN Human Rights Council (HRC) on April 3, 2009 to lead an independent fact-finding mission to examine possible war crimes in relation to the conflict that took place between December 27, 2008 and January 18, 2009. Goldstone is a former Chief Prosecutor of the International Criminal Tribunals for the former Yugoslavia and Rwanda and current Spinoza Fellow at the Netherlands Institute for Advanced Study in the Humanities and Social Sciences.
The appointment of Goldstone, who is of Jewish descent, follows the adoption of a resolution at a HRC meeting on 12 January, which was convened to address “the grave violations of human rights in the occupied Palestinian territory, particularly due to the recent Israeli military attacks against the occupied Gaza Strip.” The investigation was ordered also in response to a report by UN Special Rapporteur Richard Falk, who in his report had criticized Israel for failing to take adequate precautions to distinguish between civilians and combatants in their offensives in the region. Both Israel and the US attacked the report as biased.
The Goldstone inquiry is distinct from the UN Board of Inquiry, led by a former head of Amnesty International Ian Martin, set up to probe incidents involving death and damage at UN premises in Gaza during the operation. The UN Relief and Works Agency, which provides food, education and medical care to Palestinians in Gaza, reported that dozens of UN buildings were damaged during the Israeli offensive.
The Israeli government has indicated that it will not co-operate with the inquiry. According to a government official speaking on condition of anonymity, a letter was sent to Goldstone informing him and the Council that Israel believed it was “impossible to cooperate with the committee” because the mandate given to it by the UN organization was biased and failed to mention missile launches and other Hamas activity preceding and during the Israeli operation.
In his remarks to the media upon accepting his appointment, Goldstone said that despite the narrow mandate to restrict findings to Israeli violations, “It is in the interest of all Palestinians and Israelis that the allegations of war crimes and serious human rights violations related to the recent conflict on all sides be investigated. It is my hope that the findings of this mission will make a meaningful contribution to the peace process in the Middle East and to providing justice for the victims.” A report to the HRC is expected in July.
Israel has said that it may block the investigation team from entering Gaza, leaving investigators with the only option of entering Gaza via Egypt at the Rafah crossing. Hamas has indicated that it will co-operate with the delegation.
“If the IDF believes it did no wrong in Gaza, then Israel should cooperate fully with the Goldstone investigation,” HRW’s Joe Stork said. “Both Israel and Hamas should welcome this investigation.”
Israel’s failure to take responsibility for violations of international law may leave its military officials vulnerable to prosecution abroad. Sari Bashi, a lawyer and head of Gisha, one of the Israeli human rights groups that criticised the IDF investigation, said: “In terms of universal jurisdiction on war crimes, if you fail to prosecute domestically, you pave the way for others to prosecute you internationally.”
Under Norway’s new universal jurisdiction law, a group of Norwegian lawyers filed a complaint on April 22, accusing Former Israeli Prime Minister Ehud Olmert, Defense Minister Ehud Barak and opposition leader Tzipi Livni and seven military officers of knowing about, ordering or approving the actions in Gaza including “massive terror attacks primarily directed at Gaza’s population.”
The chief prosecutor at Norway’s National Authority for Prosecution of Organised and Other Serious Crimes Siri Frigaard will investigate the complaint, which was brought on behalf of three people of Palestinian origin living in Norway and 20 families who lost relatives or property during the conflict. It is not known how long the process will take.
Norway introduced new war crimes legislation on 7 March 2008, enabling war crimes trials to be held in Norwegian courts even where the alleged crimes concerned occurred outside Norway. The new laws cover crimes against humanity, genocide and terrorism. The first war crimes case to be heard in Norway under these new laws is that of dual Croatian-Norwegian national Mirsad Repak, which began in August 2008. Repak was charged with crimes against humanity, war crimes, torture and rape, largely in connection with crimes that were committed in the Dretelj detention camp in Southern Bosnia during the 1992-1995 war. According to the prosecutor in that case, Norwegian parliament adopted the law with a clause stipulating that it could be applied retroactively.
The court in the Repak case will have to decide whether the Norwegian judicial system has the right to try a person who did not hold Norwegian citizenship at the time the alleged crimes were committed.
The Norwegian law applies to acts committed prior to March 7, 2008 if the acts were punishable under the law in force at the time they were committed and considered as genocide, crimes against humanity or war crimes. Should an indictment be issued against Olmert and others, such arguments about legality and retroactivity would not be a feature of the case.
Meanwhile, it has emerged that Hamas may be responsible for a series of brutal sectarian attacks in Gaza that occurred during Israel’s 3-week offensive. According to Human Rights Watch, a further 14 men – mostly affiliates of rival Fatah or suspected collaborators – have been killed since the fighting ended on January 18. This figure includes eight who were beaten or tortured to death, with at least six of those in the custody of Hamas security forces. HRW has called on the Palestinian authorities to investigate and prosecute those responsible.
In its report of April 2009, ‘Under Cover of War: Hamas Political Violence in Gaza,’ HRW documented politically motivated crimes that were committed by Hamas against Palestinian citizens, including extrajudicial executions, torture and other cruel and inhuman treatment, and arbitrary detention, which are all prohibited under international human rights law and international humanitarian law, and were applicable in Gaza during the Israeli military offensive. The human rights abuses also violate the Palestinian Basic Law, which states in article 10 that “basic human rights and freedoms shall be binding and respected.”
Hamas, as a non-state armed group, is bound by the laws of war, including Common Article 3 of the Geneva Conventions 1949. Although it cannot be a party to international human rights treaties, Hamas has made a number of public promises to respect international law.
Katherine Iliopoulos is an international lawyer based in The Hague, Netherlands.
Five IDF Probes find ‘operational errors’, but no intentional attacks on civilians in Gaza Op
By Anshel Pfeffer
Haaretz, April 24, 2009
IDF Announcement: Findings from Cast Lead Investigations
Israel Defence Force Spokesperson
April 22, 2009
Israel on Trial
By George Bisharat
New York Times, April 3, 2009
Under Cover of War: Hamas Political Violence in Gaza (PDF)
Human Rights Watch
Rain of Fire: Israel’s Use of White Phosphorus in Gaza (PDF)
Human Rights Watch